Appellant has been convicted on the charge of commission of murder of deceased Muhammad Ismail by learned Additional Sessions Judge, Thatta and sentenced to life imprisonment and to pay fine of Rs.20,000 or in default to undergo further R.I. For two years.
2. Fateful incident leading to this appeal took place on 5-12-1986, at about 3-00 p.m. In front of the shop of Ramzan Baran situated in Deh J.-- Taluka Sujawal. It is the case of the prosecution that first informant Muhammad Hashim and P.Ws. Allahdino, Bachal, Yousuf and others were present in front of hotel of Saleh Muhana, when at about 3-00 p.m. Deceased Ismail appeared at the scene. Soon after appellant Ramoo alias Ramzan duly armed with a hatchet and co-accused Jummo (since dead) emerged from a nearby lane. Co-accused Jummo instigated the appellant to commit the murder of his enemy, who immediately struck a hatchet blow to the deceased, which hit him on his left side neck, resulting into his collapse and instant death of the deceased. Complainant and witnesses raised hue and cry, while the assailants took to their heels. Leaving-the witnesses to guard the dead body, Muhammad Hashim rushed to Police Station Sajawal, where he lodged F.I.R.
At 4-15 p.m. Which was recorded by A.S.I.P. Ghulam Muhammad. Motive for the commission of the crime as given out in the F.I.R. Is that deceased Ismail was Hari on the lands of Hamzo Baran.
Appellant as well as co-accused Jummo had blocked his water for irrigating his lands. It was urged that deceased Ismail had complained against the appellant and Jummo to first informant as well as Hamzo Baran who had restrained both of them not to block the water for the lands of Ismail but they refused to listen to them.
3. After registration of F.I.R., A.S.I.P. Ghulam Muhammad visited the scene of offence, in presence of Mashirs Ghulam Hussain and Qasim and recovered blood-stained earth. Dead body of deceased was referred to Medical Officer, Civil Hospital, Thatta, where autopsy was performed by Dr. Akhtar Javed.
4. On external examination Medical Officer noticed one incised wound on left upper part of neck starting below left ear to occipital region 15 x 4 c.m., cutting occipital bone into brain substance deep.
5. On internal examination he noted 'skull fracture of occipital bone. Brain substance was divided.
Meningis was ruptured in the occipital region.
6. According to the Medical Expert, death of the deceased was caused due to shock and haemorrhage resulting from injury caused by sharp-edged weapon which was instantaneous.
7. On the next day S.H.O. Khamiso Khan took up the investigation and verified the place of incident on the pointation of A.S.I.P. Ghulam Muhammad. He recorded the statements of P.Ws. Juman Soomro, Juman Khatti, Haji Siddique, Adam, Muhammad, Gul Hassan and Saleh. On the same day, he arrested Jummo from bus stand Sujawal in presence of Mashirs Ghulam Hussain and Qasim. It may be observed here that on the earlier day A.S.I.P. Ghulam Muhammad had recorded the statements of P.Ws. Yousuf, Allahdino and Bachal. On the next clay i.e. 6-12-1986, he arrested the appellant from village J.-- in presence of same Mashirs. Appellant allegedly took him and Mashirs to his house and produced a blood-stained hatchet, which was however, not referred to Chemical Examiner for expert opinion for unknown reasons. On 7-12-1986, appellant was produced before Mr. Allah Rakhio Soomro, Mukhtiarkar and F.C.M., Sujawal, who recorded his judicial confession, in which he alleged that he suspected the deceased to be on illicit terms with his sister Mst. Sabhai wife of Abdul Hakeem. He alleged that he had restrained the deceased from standing in front of his house.
On the material day he found the deceased coming in the Bazar from opposite side and on the instigation of Jummo, after obtaining hatchet from him, he gave a hatchet blow on the back of his neck, who fell down. He pleaded that he had committed the murder of deceased on account of Ghairat (provocation) as he was sure that the deceased was on illicit terms with his sister Mst.
Sabhai.
8. On completion of investigation both the accused were sent up for trial. During the pendency of trial, co-accused Jummo after his release on bail was murdered on 28-4-1992, with the result that proceedings against him came to an end by reason of abatement.
9. At the trial appellant pleaded not guilty to the charge, while the prosecution examined first informant Muhammad Hashim P.W.1, Allahdina P.W.2, Muhammad Yousuf P.W.3, Bachal P.W.4, S.H.O.
Khamiso Khan P.W.5, Ali Akber P.W.6, Mashir Ghulam Hussain P.W.7, Khemchand (Clerk of Mukhtiarkar and F.C.M., Sujawal) P.W.8, Dr. Rashid Ahmed P.W.9 and A.S.I.P. Ghulam Muhammad P.W.10.
10. In his statement under section 342, Cr.P.C. Appellant denied the allegations against him including the manner of his arrest as well as judicial confession. According to him he had voluntarily appeared at Police Station Sujawal on 7-12-1986, when he was arrested by S.H.O. He was never produced 'before any Magistrate and police after maltreating him had obtained his L.T.1 on some forms. He denied that he had any dispute with the deceased on water as the deceased had no lands on Shore Wah. With regard to the witnesses he claimed that they were related to the deceased and friendly with Muhammad Hashim, who had falsely involved him at the instance of Hamzo Baran.
11. He examined himself on oath in his defence and also lgd the evidence of Muhammad Yousuf, Canal Assistant, and Hafeez-ur-Rehman Tappedar, Tapo Sujawal, in his defence.
12. Upon assessm ent of relevant evidence, learned trial Court found the appellant guilty of murder and convicted and sentenced him as stated above vide judgment, dated 20-12-1992, which has been impugned in this appeal.
13. I have heard learned counsel for the appellant and learned State Counsel and gone through the relevant evidence on record.
14. Unnatural death of deceased Ismail as a result of hatchet injuries on his person stands established by ocular evidence of first informant Muhammad Hashim and concluded by the post- mortem report prepared by Dr. Akhtar Javed Medical Officer Civil Hospital, Thatta. The post- mortem report Exh.18/A was produced in evidence by Dr. Rasheed Ahmed working in the same hospital who is fully conversant with the signatures of Dr. Akhtar Javed. Necessity to examine Dr. Rasheed Ahmed arose because of the circumstance that Dr. Akhtar Javed had left for U.S.A. And obviously his attendance could not be procured by the trial Court. This aspect of the case is even other wise not disputed by the defence counsel and it would be safe to conclude that deceased Ismail died as a result of incised wound on his person and damage to his membranes, brain, skull as well as spinal cord. In the post-mortem report Medical Officer has expressed a definite opinion that the death of deceased was due to shock and haemorrhage resulting from injury caused by sharp---edged weapon.
15. Having held above, I proceed to examine whether the conviction of the appellant is based on proper appreciation of evidence and sound judicial principles. In this case prosecution case rests on (i) motive, (ii) ocular evidence, (iii) recovery of crime weapon from the possession of the appellant and (iv) retracted confession of the appellant before the Magistrate. .
16. As regards motive for the commission of murder it is the case of the prosecution that appellant as well as co-accused Jummo committed the murder of the deceased as 'he had a dispute with them over water for irrigation of his lands. It may be clarified that deceased Ismail is said to be cultivating the lands of Hamzo Baran. In his statement under section 342, Cr.P.C. As well as statement on oath under section 340(2), Cr.P.C. Appellant unequivocally denied the dispute with the deceased. He claimed that deceased had no lands on Shore Wah where his own land is situated and from where he irrigates his lands. In his statement on oath appellant reiterated that lands of his father are situated on Shore Wah Canal. He added that there are no lands of Hamzo Baran on the Watercourse of Shore Wah and there were no lands under cultivation by deceased Ismail near his own lands. No doubt learned A.P.P. Disputed this version of the appellant, during the cross-examination no evidence worth consideration was brought-on record in support of the motive for the commission of the crime. Sole evidence furnished on this point is by first informant Muhammad Hashim to the effect that there was dispute over the water between Ismail and accused Ramzan and Jummo. He further stated that Ismail was cultivating the lands 6f Hamzo Baran and that the deceased had complained to Hamzo Baran as well as to himself that his crop was being dried. This statement of the first informant was seriously challenged in the cross- examination when he admitted that no application about the dispute over water against the accused persons was ever made to Irrigation Authorities. Alleged eye-witnesses namely Allah Dino, Muhammad Yousuf and Bachal have complete silence on this aspect of the case. They have not spoken a word about so-called motive on the part of the appellant for commission of murder.
However, due to the lapse on the part of the counsel defending the appellant before the trial Court on State expenses. Allah Dino was cross-examined on this point when he stated that the land of his Zamindar Muhammad Ali Baran was situated in Deh J.-- and received water from Shore Wah but he did not know the name of the watercourse.
17. Appellant on his part besides disputing this piece of evidence in his own statement and evidence adduced the evidence of Muhammad Yousuf, Canal Assistant, who stated on oath that he had brought the record of lands situated on Shore Wah and particularly of Watercourse No.4/AL.
He produced the sketch of lands Exh.24/A. He stated that the record indicated that Survey No.327 situated on Watercourse 4/AL Shore Wah belonged to Soomar Gurmani father of appellant Ramzan. He further added that according to Karia Register as well as his record there was no land of Hamzo Baran situated on Watercourse No.4/AL. This witness is a public servant serving in Irrigation Department and has no obvious reason to give false evidence or to oblige the appellant.
His statement is supported by the sketch map produced by him in evidence. The matter does not end here. The appellant had summoned Tapedar Tapo J.-- alongwith the relevant record namely D.W. Hafeezur Rehman. This witness stated that there was no mention of namE Angario (deceased Ismail) as Hari on the lands of mother of Hamzo Baran. He clarified that in the Revenue Record no land was entered in the name of Hamzo Baran but there was an entry in the name of his mother Mst. Hawa who owned share in the lands with other Khatedars. He mentioned the survey numbers in which Mst. Hawa had share and stated that the same were being cultivated by main Khatedar himself without the assistance of any Hari. Aforesaid evidence in my view is sufficient to brush aside the prosecution case the point of motive which stands completely demolished. In these circumstances, I am entitled to draw an inference that the prosecution miserably failed to establish the motive for commission of crime against the appellant.
18. Adverting to the ocular evidence I find that first informant Muhammad Hashim is employed in Thatta Sugar Mills and is resident of Sujawal. In his entire evidence he has not been able to account for his presence at Village J.-- where the fateful incident took place. His presence at the scene of offence at the time of incident is exposed to serious doubts and has not been satisfactorily explained. It is, therefore, difficult to accept his oral version without any strong and independent corroboration. Likewise P.W. Muhammad Yousuf who claims to be an eye-witness and resident of Deh Lyari Taluka Mirpura Bathoro has also not been able to explain his presence at the place of incident. He has admitted his employment in Thatta Sugar Mills as a helper where Muhammad Hashim is also employed as Field Helper. By reason of his employment in the same Mills possibility of the witness supporting the version of first informant cannot be excluded in the circumstances.
P.W. Muhammad Hashim has frankly admitted that this witness resides in Deh Lyari which is 3-1/2 kilometres away from Village J.--. In the absence of any satisfactory explanation regardisng availability of this witness at the place of incident he appears to be a set up witness and it is difficult to safely rely upon it on its face value. Evidence of P.W. Bachal also suffer from the same infirmity as during his cross-examination he admitted that his original village is Kohiari situated at a distance of about 1/2 mile from Village J.--. He did not explain his presence at the scene of occurrence in his examination-in-chief which was legitimately expected of him but in his cross- examination he attempted to justify his presence at Village J.-- by stating that he had come to this village to offer Jumma prayers. The explanation on the face of it may seem to be probable but it was incumbent on the witness to explain his presence in his examination-in---chief to the Law Officer conducting the prosecution. It is disturbing to note that at the top of his deposition he disclosed his place of residence as Village J.-- but in his statement under section 164, Cr.P.C. Exh.11- A recorded during the course of investigation he had given his residence as Village Kohiari which persuaded the defence counsel to enquire about his actual place of residence. At any rate, his evidence does not inspire confidence and I am not inclined to accept his solitary word and belated explanation to show his presence in the village of incident.
19. No doubt P.W. Allah Dino resides at Village J.-- and is hair dresser by profession as stated by him, he has admitted that he is working as Hari at the lands of Muhammad Ali son of Hamzo Baran.
It may be observed here that in his statement appellant has alleged enmity against said Hamzo Baran and made a grievance of the circumstance that he has been falsely implicated at the instance of Hamzo Baran against whom his father Soomar had given evidence in Criminal Case No.66 of 1983. In support of this assertion appellant produced a certified copy of the judgment in the criminal case passed on 28-4-1985 acquitting as many as nine accused and certified copy of the deposition of his father in the case in which Hamzo Baran was said to be injured person. The appellant has suggested his defence plea to P.W. Muhammad Hashim who has denied the same for obvious reasons. As regards the evidence of P.W. Ali Akbar Shah who has claimed to be an eye- witness, I am least impressed by his evidence for the simple reason that his name does not appear in the F.I.R. Lodged by Muhammad Hashim after 1-1/4 hours of the incident. Even' otherwise this witness in his statement under section 164, Cr.P.C. Has shown to be resident of village Jamal Lashari, Deh Adhejan whereas in his evidence before the Court he claimed to be resident of village J.-- which is hardly acceptable.
20. During his cross-examination P.W. Muhammad Hashim admitted the presence of 10/15 other persons of village J.-- with him at Sector Office at the time of incident. This fact was also admitted by other witnesses as well but none of them was named or examined in support of the prosecution case in order to lend independent corroboration to the interested version. More particularly P.W.
Bachal has admitted that there were about 10/15 persons of different castes available at the hotel of Saloo Mohano when the incident took place. He stated in clear terms that all of them had witnessed the incident. In the face of presence of independent witnesses it was imperative and incumbent on the prosecution to examine some of them to lend support to the interested evidence. An adverse inference in the circumstances can, therefore, be drawn against the prosecution on this account. In the case of Mangio v. The State 1976 PCr.IJ 243 the view taken by a Division Bench was that in case persons of non-partisan character and natural witnesses of occurrence were not examined by prosecution adverse inference against the prosecution is the only result of such a conduct on their part.
21. As regards the recovery of crime weapon at the pointation of appellant before A.S.I.P. Ghulam Muhammad in presence of Mashirs Ghulam Hussain and Qasim it is admitted that this weapon was not referred to the Chemical Examiner to ascertain whether it was stained with human blood.
The recovery of blood-stained hatchet, if at all any, would thus lose its evidenciary value and be of no consequence. Although in the Mashirnama of recovery there is a mention that handle of the hatchet was stained with blood whereas its blade had a mud over it, A.S.I.P. Ghulam -Muhammad in his evidence purposely omitted to say that the hatchet secured by him was blood-stained.
Similarly P.W. Ghulam Hussain remained silent as to the presence of blood marks on the hatchet though he supported the recovery of hatchet from the house, of the appellant at his pointation. In the absence of any evidence to show that the hatchet was stained with human blood recovery is of no value as --hatchets of this type are commonly available in the open market. It is strange to observe that the Investigating Officer did not send the hatchet to the Chemical Examiner for expert opinion and even S.H.O. Khamiso Khan did not bother to see that the weapon of offence was referred to the Expert which is always conventional in cases of this nature.
22. Lastly coming to the judicial confession of the appellant it may be pointed out `that the Magistrate Mr. Allah Rakhio Soomro could not be examined as during the pendency of trial he had expired. Accordingly P.W. Khemchand Clerk in his office was summoned to produce the confession Exh.17-A as he happened to be conversant with the writing and signature of the Magistrate under whom he had served for 5/6 months. In fact the appellant has retracted his confession and claimed that he was never produced before the Mukhtiarkar and F.C.M., Sujawal and police had obtained his L.T.I. On some forms. Even otherwise the contents of confession are not in consonance with the prosecution case as set up against him. While the prosecution case is that appellant had committed the murder of deceased with a definite motive owing to enmity between the parties, in confessional statement appellant stated that he caused death of the deceased as he suspected him to be on illicit relations with his sister Mst. Sabhai. Confessional statement being glaringly inconsistent with the prosecution evidence obviously cannot be used against the appellant in order to base a conviction as it is settled proposition of law that if confessional statement of accused is to be relied upon then it must be relied I upon in its entirety. I am fortified in this view by a judgment of the Honourable Supreme Court in the case of Mashal Khan v. The State PLD 1988 SC 25: In the case reported as Najib Raza Rehmani v. The State PLD 1978 SC 200 their Lordships of the Supreme Court approved the view taken in Hanumant Govind Nargundi and another v. The State of Madhya Pradesh AIR 1952 SC 343 in which it was held that it is settled law that an admission made by a person whether amounting to confession or not cannot be split up and part of it used against him.
23. In the circumstances discussed above even learned State Counsel did not support the conviction of the appellant. At the conclusion of the arguments by a short order for reasons to be recorded later, this appeal was allowed and appellant was directed to be released forthwith unless required to be detained in any other case. These are the reasons for allowing appeal and directing the acquittal of the appellant.